Hanlon’s Razor and the American Law Institute’s Misguided Copyright Restatement Project

Guest post from The Invisible Stagehand.

I’d like to offer an alternate theory on the foundering attempt by the American Law Institute to “restate” copyright law. While my colleagues make good points on the lack of transparency, openness and fairness with the current ALI process; rightfully note the conflicts of interest; and excoriate Sprigman for taking money (however indirectly) from Silicon Valley while working on the project, the most obvious conclusion is that those in charge of the restatement are incompetent. Not devious.

I refer you to Hanlon’s Razor:

Hanlon’s Razor: “Never attribute to malice that which is adequately explained by incompetence.”

Now incompetence rather than malice doesn’t mean that someone shouldn’t be fired. Someone probably should be fired. Start with Sprigman. He’s in charge of the project. If that doesn’t work fire someone else. Repeat until incompetence stops.

The case for incompetence.

Exhibit One: The fact that this is now a PR issue for the ALI is the clearest example of incompetence. Sprigman or Director Revesz could have made some relatively small changes to the project in 2015 (as many suggested) and the acting Register of Copyrights would have never written the now infamous “pseudo version of the copyright act” letter. This of course was the basis of the Billboard story that enraged artists. In other words an easily avoidable mistake started the entire controversy. Incompetence.

Exhibit Two: Leader of the project Christopher J Sprigman. Good lord does the man have a shred of common sense? I assume the position as “reporter” on the ALI Copyright Restatement is a position that confers some prestige. Why screw it up by taking on Spotify as a client in the middle of the project? Or co-author papers that are directly or indirectly funded by Google at the same time? It’s not an “impartial” look. Did he need the money? I doubt it. Now, not only does his reporter position NOT impart prestige, his own reputation is in tatters. What a screw up. Clearly not a devious mastermind.

Exhibit Three: Sprigman’s letter proposing the project clearly indicates he had a result in mind. It reads like a police confession. He admits to everything he is accused of by his critics. A scholarly project like this is not supposed to start with conclusions and work backwards. Yet he pretty much admits this is his intention in the letter. If I intended to do something this dishonest I wouldn’t start by writing it down in a letter that would surely one day become public. I was too dumb for law school. But this guy must be dumber. Again not a devious mastermind.

Exhibit Four: If you choose to measure incompetence by quantity, look at some of the letters that take issue with the drafts. For instance the Author’s Guild wrote a long letter to ALI Director Revesz detailing 16 major mistakes in the draft of the first chapter. Some of these mistakes are just bizarre, (I can’t see the draft) but apparently royalties and fees paid to creators are referred to as “taxation.” This is either a dumb mistake, or an unnecessary provocation of copyright holders that only an incompetent person would make while trying to build consensus for a draft. Incompetence.

Exhibit Five: Just for fun, let’s take last exhibit and assign deviousness to Sprigman and Revesz. Suppose they were attempting to pull a variation of a machiavellian committee minority strategy. A competent strategist wouldn’t needlessly antagonize the committee minority by using the term “taxation.” The minority (pro copyright members) are not supposed to see that the game is rigged. The marks are supposed to think they were simply outvoted. That’s how the con works!! Again incompetent not devious. Maybe add arrogant.

Exhibit Six: Sprigman took to facebook to call out his critics describing them as “hacks engaging in hackery.” I was speechless when I came across this on facebook. This is not the kind of thing that a competent leader does when faced with criticism. The guy is clearly out of his league. Again not a devious mastermind.